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New Rules of the California Workplace Playground – Employers’ Guide to Abusive Conduct

Workplace Abusive Conduct

This past September, Governor Jerry Brown signed Assembly Bill No. 2053 to mandate that employer training and education include matters relating to “abusive conduct.” Some California employers, however, are scratching their heads about what exactly that means, and how to comply with the new requirements.

What Qualifies as “Abusive Conduct”?

Ingrid-FredeenIngrid Fredeen is the Vice-President of NAVEX Global’s Advisory Services team. She has specialized in legal compliance and ethics training for more than a decade, and recently authored “California AB 2053 Training Regulation On Abusive Conduct at Work: What You Need to Know.”

In the U.S., the term “workplace harassment” refers to conduct that is … related to a protected class (such as gender, sex, color, national origin, age, etc.). “Abusive conduct,” on the other hand, is a much broader concept, and encompasses a wide array of disrespectful and abusive behaviors. These behaviors can include general threats, intimidation, repeated discriminatory treatment, teasing, bullying, and sabotaging another’s work. These behaviors have a tremendous impact on the workplace and individual employees, and can impact their health, morale, and productivity. – Ingrid Fredeen

Mike-HabermanVice-President and Co-Founder of Omega HR Solutions, Michael D. Haberman, shares his 30+ years of HR experience by blogging, speaking, and co-hosting the podcast radio show Naked HR Radio. He is very familiar with the concept of bullying in the workplace.

Workplace bullying refers to repeated, unreasonable actions of individuals (or a group) directed towards an employee (or a group of employees), which is intended to intimidate and creates a risk to the health and safety of the employee(s). It often involves an abuse or misuse of power. Bullying includes behavior that intimidates, degrades, offends, or humiliates a worker, often in front of others. Bullying behavior creates feelings of defenselessness in the target, and undermines an individual’s right to dignity at work. – Michael D. Haberman

“Abusive conduct” may be a more formalized phrase in light of AB 2053, but it isn’t a new idea and it definitely isn’t something that most employers aren’t already aware of and are already actively discouraging. In fact, Fredeen encourages employers to not concern themselves or their employees with definitions and terms anyway.

Managers and employees should not be focused on the legal definition of harassment and how it differs from abusive conduct. It is important that they understand that general bullying is not unlawful in most instances, but that it is unacceptable and against company policy. Rather than focus on teaching legal definitions, organizations should focus on promoting their corporate culture and their values. If an organization is committed to creating a work environment that is fair, equitable, respectful, and considerate, then neither abusive conduct nor unlawful harassment should be tolerated. – Ingrid Fredeen

You probably didn’t need an amendment to tell you that a safe, peaceful work environment is favorable for you and your teams, which means you’re already on the right track.

How to Recognize Abusive Conduct in the Office

Bullying is by nature more subtle than outright harassment.

Tiffany-RobertsonTiffany Robertson is a member of the American University Law Review, and regularly contributes to the Thomson Reuters blog. She shares her experience and wisdom regarding legal issues and compliance in the workplace, and she points out why bullying can sometimes be hard to recognize.

Harassment tends to have a strong physical component and is usually linked to gender, race, disability or physical violence, whereas bullying tends to be a series of incidents that alone may seem trivial, but that over time comprise continuous unjustified and unsubstantiated condemnation. – Tiffany Robertson

Still, good training for supervisors and managers can help them identify abusive conduct that would otherwise go unrecognized and unreported. Haberman has learned to watch for certain behaviors and patterns.

Bullying involves repeated attacks against the target, creating an on-going pattern of behavior.

  • Examples of bullying:
  • Unwarranted or invalid criticism.
  • Blame without factual justification.
  • Being treated differently than the rest of the work group.
  • Being sworn at.
  • Exclusion or social isolation.
  • Being shouted at or being humiliated.
  • Being the target of practical jokes.
  • Excessive monitoring.

 

“Tough” or “demanding” bosses are not necessarily bullies, as long as their primary motivation is to obtain the best performance by setting high expectations. Giving a corrective review or talk is not bullying. Doing so in public, swearing while doing so, and doing it in a loud voice may be an example of bullying. – Michael D. Haberman

Don’t spend too much time trying to compile an exhaustive list of bullying behaviors, though.

Abusive conduct comes in many forms. No list can offer a complete summary. As a baseline, employers should put an end to any and all forms of disrespectful conduct. – Ingrid Fredeen

Any kind of behavior that interferes with the security or productivity of your workplace should be addressed and ended, whether it’s harassment, abusive conduct, or just a bad attitude. Your primary concern is not merely compliance, of course, it’s creating a positive work environment. In doing that, compliance will fall into place.

How to Adjust Training Programs for AB 2053

The amendment dictated by AB 2053 makes new requirements of employer training programs. So while definitions vary, and philosophies discuss where the focus should be — your HR department still wants to make sure they’re compliant.

For starters, abusive conduct training should help supervisors and managers deal with difficult situations, and train them to prevent inappropriate behavior before it happens.

Anti-bullying training should address and explain the difference between bona fide performance critiques, and indignant remarks with no legitimate business purpose. Supervisors should also be advised to refrain from making impulsive management decisions, and [be] provided with tools for handling any heightened emotions they may experience. Finally, supervisors should be encouraged to be alert for co-worker bullying and provided with guidance preventing such behavior and addressing it in the event in occurs. – Tiffany Robertson

General training on what constitutes abusive behavior, and what kinds of things will not be tolerated, can lead to a bigger (and more positive) discussion of brand values.

Organizations should teach employees and managers about the types of behaviors that are unacceptable, and the consequences for engaging in that conduct. General bullying behaviors often precede more severe forms of unlawful harassment. Don’t limit these behaviors to just unlawful harassment — expand on them to include abusive conduct that has a drain on productivity and destroys employee morale. Respectful treatment of others is a common core value of successful organizations. – Ingrid Fredeen

Adjusting your training programs for AB 2053 doesn’t have to be an enormous task. You’re teaching your team about harassment, so expand your conversation beyond the legal definition for workplace harassment to include other damaging behaviors your organization will not tolerate. You can include a list of basics, but be sure to broaden the scope and let people know that any speech or behavior that might be considered abusive will be swiftly dealt with.

How to Adjust Office Policy for AB 2053

As you update training programs, you might also consider updating some general office policy practices and documents as well, to reflect new abusive conduct standards.

Make sure the language in written documents like employee manuals is clear, and processes are in place for reporting.

Workplace policies should be modified to include an anti-bullying policy that expressly prohibits bullying behavior in the workplace. Employee handbooks and manuals should include language establishing that abusive conduct is a violation of company policy that will be taken seriously, and promptly investigated with appropriate disciplinary measures for offenders. Companies may also want to consider providing a confidential method for reporting bullying problems. Finally, companies should implement a code of conduct to establish the type of behavior expected of employees to encourage respect among co-workers. – Tiffany Robertson

New policies always take some time to roll out and become part of the greater corporate culture. Take extra care to apply abusive conduct standards and regulations fairly across the entire organization, in order to solidify their importance and speed their acceptance.

Organizations must be sure to apply the policies and expectations equally to employees and managers. Managers who are allowed to engage in generally abusive conduct will have a destructive impact on any organizational efforts to build a respectful workplace culture. – Ingrid Fredeen

You might get some eye-rolls and cynical whispers, but continue to stress that the organization is simply putting guidelines on the books to maintain a productive, pleasant workplace for everyone.

The Benefits of AB 2053

Your organization may already be doing this kind of training, and you may already have policies and procedures in place to prevent and address workplace bullying. If not, it’s time to update those systems.

If employers become more aware of, and more willing to address, abusive conduct, we should see healthier workplaces overall. Which in turns means that employees will be happier, more productive, and less likely to job hop. – Ingrid Fredeen

 

AB 2053 will help companies minimize the damaging effect bullying can have on their business operations. Left unaddressed, both harassment and bullying in the workplace can create an atmosphere filled with tension and fear. The physical and emotional symptoms experienced by victims of bullying — frustration, anger, anxiety, insomnia, an inability to concentrate, and other performance and productivity issues — can also lower productivity, and increase absenteeism.  Furthermore, because employees tend to leave a job rather than report being bullied or witnessing such behavior, bullies can often cause companies to experience a higher staff turnover rate, together with the associated costs of hiring and training. – Tiffany Robertson

While it may be a little extra work for HR right now, AB 2053 requirements will reap nothing but benefits for your brand.

Everybody Wins

Bill 2053 itself defines “abusive conduct” as,

Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.

Training your employees to refrain from, and report — if necessary, such behavior is probably not much different from what you’re already doing. Any change you do make to ensure compliance, though, will likely only lead to happier and more productive employees.

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Wit of Mandate - the official blog of Simas & Associates, Ltd., is made available by Simas & Associates, Ltd. to the general public for educational purposes only.  Specifically, the entries contained within Wit of Mandate are designed to provide the general public with general information concerning California and Federal law.  Wit of Mandate does not provide specific legal advice and does not create an attorney-client relationship between the reader and Simas & Associates, Ltd.  Wit of Mandate is not an effective or appropriate substitute for obtaining legal advice from a qualified attorney licensed in your state with experience in your practice area or forum of law.

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